“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Thursday, November 14, 2013

Political Prediction: Leadership of Indiana General Assembly Will Kill Anti-Same Sex Marriage Amendment in 2014

Early 2014, the Indiana General Assembly will take up House Joint Resolution 6, a measure to write into the Indiana Constitution the statutory ban on same sex marriage. But the measure goes further than that with a second sentence that seeks to outlaw, via the state constitution, alternatives to same sex marriage. The exact wording of the proposed amendment is as follows:

“Only marriage between one (1) man and one (1) woman will be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Left: House Speaker Brian Bosma;
Right: Senate President Pro Tem David Long

Indiana has an unusual constitutional amendment process whereby proposed constitutional amendments can be passed by a simply majority, but they have to pass two separately elected and consecutive General Assemblies. Then, as in virtually every state, the amendment is sent to voters for ratification. HJR-6 passed in 2011, the Senate 40-10 and the House 70-26. On both votes, several Democrats crossed over to vote with the Republican majority.

HJR-6 was next eligible for consideration in 2013 following the 2012 elections. Even though Republican super-majorities were elected in both chambers (from districts redrawn in 2011), the political winds on same sex marriage had begun to shift. In 2013 legislative session, HJR-6 was pulled off the table by legislative leaders who were worried about the distraction of dealing with that issue while trying to advance an aggressive legislative agenda.

The last hope for HJR-6 to clear the legislative process is 2014. Let me be the first to predict that HJR-6 won't make it, that legislative leaders are going to kill it like they did in 2013. Here is why:

RELUCTANCE TO MOBILIZE POLITICAL FORCE BEFORE AN ELECTION: The pro-same sex marriage folks are extremely well-organized. If the legislature passes HJR-6 then the amendment
moves to the referendum phase and with it a mobilized and energized political force
that not only advocates against the amendment but targets Republicans. GOP
leadership will not want that force to influence the 2014 elections.

STATUTORY BAN ALREADY EXISTS: There is already a statutory ban on same sex marriage. Killing
HJR-6 does nothing to change the status of same sex marriage. So there
is a ready "out" for leadership to kill the amendment.

THE SECOND SENTENCE DILEMMA: The second sentence to the amendment carves out new policy territory which isn't part of existing state law. It is unclear how that phrase would be interpreted. It is contradictory to pass an amendment because of concern over activist judges and then hand those allegedly activist judges a vague prohibition like sentence two. Plus, the language also bars future General Assemblies from passing laws on the subject. The second sentence of the amendment has turned out to be the Achilles' heel of the amendment.

POLITICAL WINDS ARE SHIFTING...DRAMATICALLY: Poll results always depend on how questions are asked, but most polls show Hoosier public opinion moving sharply against the amendment. More troubling for Republicans legislators, an increasing number of younger conservatives are supporting same sex marriage.

MANY REPUBLICAN LEGISLATORS ARE SYMPATHETIC TO THE CIVIL RIGHTS ARGUMENT MADE BY THE OTHER SIDE: Being a legislator is always a struggle between whether you vote your own conscience (the trustee model) or the way your constituents want (the delegate model). Inevitably the approach legislators take shift from issue to issue. When there is public opinion overwhelmingly on the other side, legislators feel they have to abandon their personal views and vote the way their constituents want. (That happens with legislators in both parties.) Now that political opinion in their districts is changing, you're seeing many Republican (and Democratic) legislators announce a change of heart when it comes to their previous position on HJR-6.

INFLUENCE OF BIG BUSINESS: The leaders of many of the state's largest corporations, who usually support Republicans, have signed on as part of a coalition against HJR-6. While the business leaders' attempt to spin the issue as critical to economic development lacks in any statistical support, their presence in the debate gives Republicans cover if they choose to abandon their earlier support of the amendment.

Mark my words, HJR-6 will not pass the legislature in 2014, most likely because the legislative leaders will pull it off the table so a vote will never be taken.

10 comments:

You've written kindly in the past of political candidates willing to challenge incumbents of their own parties, particularly Mourdoch in regards to Lugar as well as a hypothetical primary challenge to Ballard. What say you of the pledges of Monica Boyer, Micah Clark, etc... of pledging to primary challenge Republicans who don't support passage of HJR6?

There are more than a few who would like to see this one get to a ballot, if only to take a step towards eliminating the crazies from the control of the party, but we'll also learn a lot about how much sway Bosmas really can exercise.

Maybe the powers that be down at the state house should read what Thomas Jefferson states about the separation of religion and the government. “Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself. Erecting the 'wall of separation between church and state,' therefore, is absolutely essential in a free society.” The same sex marriage amendment is nothing more then politician using their religious ideals to push their agenda. Thank you Thomas Jefferson!

“Almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.” ― Robert A. Heinlein

That being said the minister that married me said that he loves the 95 percent of the people in his church. He also stated that the 95% do incredible things for the church and the community! The 5% are the ones who drive him crazy!

Need only look for guidance to the words of our Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

I have a lot of respect for Monica and Micah. I'm with them on 90% of the issues. But I wish they would focus on a religious liberty bill instead of this amendment. That's where the next battle is and on that they are on much, much firmer ground. When we start mandating that people do things in violation of their religious beliefs, not making accommodations for those religious beliefs, then there is a problem, i.e. discrimination against people because of their religious beliefs. I think of what was done to that New Mexico couple who had the photography studio and they didn't want to be forced to photograph a same sex marriage in violation of their religious beliefs. Court decisions upheld their being fined. Eventually they went out of business. That's wrong. Even some of the strongest supporters of same sex marriage do not support what was done to that couple.

I just read an article on the same sex couple where one was hospitalized and the other was armed with power of attorney, etc. He had legal documents which would give him what they say they are denied because they cannot marry. He was not denied visitation as a family member unlike the cases where they try to make a case for discrimination against gays. People that are not married are willed possessions and money, so saying they are denied holds no weight. So to me, this is really about changing America's religious beliefs. In this day and age marriage is not respected and children are born to single mothers (much to children and societies detriment) so to demand to marry carries little weight. Homosexuality has a stigma, religious and otherwise, and their push is a way to mainstream themselves into being accepted. The libs will beat you into submission on this issue. Then what next?

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.